REAUTHORIZATION OF THE USA PATRIOT ACT

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION

JUNE 8, 2005

Serial No. 10910

Printed for the use of the Committee on the Judiciary

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Available via the World Wide Web: http://www.house.gov/judiciary
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21654 PDF

2005

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COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman
HENRY J. HYDE, Illinois
JOHN CONYERS, JR., Michigan
HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia
LAMAR SMITH, Texas
JERROLD NADLER, New York
ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
ZOE LOFGREN, California
DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas
WILLIAM L. JENKINS, Tennessee
MAXINE WATERS, California
CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts
SPENCER BACHUS, Alabama
WILLIAM D. DELAHUNT, Massachusetts
BOB INGLIS, South Carolina
ROBERT WEXLER, Florida
JOHN N. HOSTETTLER, Indiana
ANTHONY D. WEINER, New York
MARK GREEN, Wisconsin
ADAM B. SCHIFF, California
RIC KELLER, Florida
NCHEZ, California
LINDA T. SA
DARRELL ISSA, California
CHRIS VAN HOLLEN, Maryland
JEFF FLAKE, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

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CONTENTS
JUNE 8, 2005
OPENING STATEMENT
Page

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress

from the State of Wisconsin, and Chairman, Committee on the Judiciary .....
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Ranking Member, Committee on the Judiciary .........

1
2

WITNESS
The Honorable James B. Comey, Deputy Attorney General, U.S. Department
of Justice
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

4
6

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary ...................................................................................................
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress from the State of California ................................................................

2
3

APPENDIX
MATERIAL SUBMITTED

FOR THE

HEARING RECORD

Indictment of Tarik ibn Osman Shah submitted by F. James Sensenbrenner,

Jr., Chairman, Committee on the Judiciary ......................................................

33

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REAUTHORIZATION OF THE
USA PATRIOT ACT
WEDNESDAY, JUNE 8, 2005

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman SENSENBRENNER. The Committee will be in order.
A quorum is present for the taking of testimony. Today marks
the Committees eleventh hearing in a series of oversight hearings
on the reauthorization of the USA PATRIOT Act. We are pleased
to have with us as our witness today the Deputy Attorney General,
James Comey.
Mr. Comey, it is my understanding that you are leaving the Department of Justice, and I would like to thank you for your dedication and service to our country.
I would also like to thank Chairman Coble, Ranking Member
Scott, and other Members of the Subcommittee on Crime, Terrorism, and Homeland Security, for holding nine of the 11 hearings
on the PATRIOT Act. These hearings have been beneficial in informing Congress and the public about many aspects of the PATRIOT Act, and also demonstrate this Committees continued commitment to taking our oversight responsibility seriously.
As this series of hearings has shown, the PATRIOT Act has been
effective in bringing down the wall that prevented information
sharing between the intelligence community and law enforcement.
It has also updated the tools of law enforcement to match the technology used by the terrorists and criminals today.
In reviewing the authorities of this act, it is crucial to focus on
the facts, and not on hypothetical scenarios. In a post-9/11 world,
it would be irresponsible to refuse to provide our law enforcement
authorities with vital anti-terrorism tools based solely on the possibility that somewhere at some time someone might abuse the law.
Unfortunately, all Government powers have the potential to be
abused; which is why Congress provides penalties for such abuse.
Additionally, Congress, the courts, and the executive branch have
created several protections against abuse before, during, and after
the enactment of the PATRIOT Act.
Rather than base the decision on whether to reauthorize the PATRIOT Act on scenarios on how it might be abused, I think it is
more constructive to focus our review on how the PATRIOT Act has
actually been used.
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A real-life example on how the tools of the PATRIOT Act have
been effectively used involves a recent case of two U.S. citizens,
Tarik ibn Osman Shah and Rafiq Sabir, who were arrested and indicted on charges of providing material support to al-Qaeda. This
investigation began in 2002, and over the course of 3 years the FBI
used several provisions enhanced by the USA PATRIOT Act. So
that everybody may see how the FBI used these tools, I am submitting for the record a copy of the indictment which was unsealed on
May 31st.
[The material referred to is located in the Appendix.]
Chairman SENSENBRENNER. I am pleased that these hearings
have also been effective in dispelling public misconceptions about
the PATRIOT Act. For instance, the Attorney General informed us
that section 215, dubbed the library provision, has never been
used to obtain business records from a library or bookstore.
However, the hearings have also demonstrated the danger of
carving out safe harbors or exemptions that terrorists could exploit.
As U.S. Attorney Wainstein testified, the 9/11 terrorists used computers in public libraries to check on their travel arrangements for
the day of the attack.
These hearings also corrected the erroneous claim that probable
cause was no longer necessary when law enforcement sought court
approval for surveillance orders. Probable cause is needed in both
a criminal case or an intelligence case. For a criminal case, there
must be probable cause that a crime has been or is about to be
committed; and for an intelligence case, there must be probable
cause that the target of the surveillance is an agent of a foreign
power. These probable cause standards existed before the PATRIOT Act, and remain unchanged.
The hearings also provided the Members and the Department of
Justice the opportunity to discuss the adequacy of notice to suspected terrorists and criminals, the need for reporting to Congress,
and the ability to challenge the intelligence authorities in court.
The hearing today will provide Members the opportunity to address any issues that remain open and allow the Deputy Attorney
General to address any concerns that were raised during the previous hearings. With that, I recognize the Ranking Member, the
gentleman from Michigan, Mr. Conyers, for his remarks.
Mr. CONYERS. Thank you, Chairman Sensenbrenner. Im delighted to be here and welcome the Honorable James Comey, Deputy Attorney General for the Department of Justice. We have your
prepared statement, and we look forward to a rigorous discussion
during this hearing.
Id also ask unanimous consent to put my statement in the
record at this time, and Ill return any time that I have.
Chairman SENSENBRENNER. Without objection, the gentlemans
statement will be placed in the record. Without objection, all Members opening statements will be placed in the record at this point.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE
ON THE JUDICIARY
There are few issues that are more important to this Committee or this Congress
than the Patriot Act and the war against terror. This not only affects the rights and

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privacy of every American, but impacts the extent our nation is able to hold itself
out as a beacon of liberty as we advocate for democracy around the world.
For many of us, this process of hearings is not merely about whether we should
extend 16 expiring provisions of the USA Patriot Act; its about the manner in which
our government uses its legal authorities to prosecute the war against terror, both
domestically and abroad.
That is why I think its so critical that our Committee hold hearings on the practice of closed immigration proceedings; the sanctioning of torture and abuse; and the
widespread use of racial profiling of Arab and Muslim Americans. To avoid issues
of this nature is to avoid dealing with the concerns that go to the very heart of our
constitutional values and principles in my judgment.
If the Majority is not willing to hold hearings on such issues, I believe fundamental fairness and comity dictate that those Members who have an interest in
doing so be able to conduct their own forums, as has always been the case on this
committee.
The importance of this issue is also why I believe that at the very least the Members are entitled to answers to their written questions before we markup any legislation. There is no reason in the world that the Department of Justicethe largest
law firm in the worldcant take time to respond to our questions in a timely and
useful manner.
In order to protect the rights of the Minority to a fair process, I am today submitting a letter seeking additional hearings. I of course remain open and hopeful that
we can resolve these matter though the ordinary give and take of discussions with
the Majority, as we have in the past.
As we move from the hearing process to legislation, there is no member of this
Committee who is more interested in developing a bipartisan solution to the problem of terrorism in the 21st century than I am. Events in the Senate make it all
the more imperative that we come to the table with a united front to this problem.
We came very close to such an approach four years ago, and there is no reason we
cannot craft a bill which protects our nation against terrorists, while preserving our
fundamental values.

[The prepared statement of Ms. Waters follows:]

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE
CONGRESS FROM THE STATE OF CALIFORNIA

IN

Mr. Chairman, the USA Patriot Act has too many provisions that leave the government with too much discretion and power in their application. Furthermore, the
Patriot Act provides absolutely no checks on government power and leaves too much
room for misuse and abuse of its provisions, which could lead to an unconstitutional
application of the law. Therefore, many sections of the USA Patriot Act should be
allowed to sunset at the end of the year.
Mr. Chairman, to illustrate, section 215 of the Patriot Act allows the government
to seize and search business records and any other tangible things that are relevant to an international terrorism investigation or an investigation of clandestine
intelligence activities. The recipient of the orders to turn over the records, are
placed under a gag order, prohibiting them from telling anyone about the search or
seizure. This section clearly overreaches.
In the governments ability to secretly seize and search any records that are relevant to the investigation, the information the government can seize is overwhelming. For it gives the government too much secret surveillance power. American citizens have the right to be eventually notified that they are under surveillance and section 215 impedes on that right by allowing the government to conduct
surveillance, without the requirement of notice, for time periods that are unspecified
and unchecked.
Mr. Chairman, another example of the Patriot Acts vast powers is section 206.
This provision should also be allowed to sunset. Section 206, allows the government
to obtain John Doe roving wiretaps in foreign intelligence cases. There is no requirement to specify a target or a telephone, and the government can use the wiretaps without checking that the intercepted conversations actually involve a target
of the investigation. In addition, these wiretaps are ordered with no requirement to
give the target notice that they are being wiretapped. This section is blatantly unconstitutional. It violates the Fourth Amendment by failing to specify, with particularity, what the subject of the investigation is, again giving the government unchecked power to secretly wiretap a target, without sufficient judicial oversight.
Mr. Chairman, these are just a few of the extreme powers bestowed upon the government through the USA Patriot Act. Without a carefully monitored system of

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checks and balances, we specifically endanger our individual rights to privacy and
due process of the laws. Even though national security has become a top priority
since 9/11, we still must not allow our constitutional rights to be so blatantly violated.
Mr. Chairman, as I have stated before, absent an undeniably clear demonstration
from law enforcement that these provisions are essential, the relevant sections of
the USA Patriot Act must be allowed to sunset at the end of this year. I yield back
the balance of my time.

Chairman SENSENBRENNER. Now it is my privilege today to introduce Deputy Attorney General James B. Comey. President Bush
nominated Mr. Comey on October 3, 2003, and he was unanimously
confirmed by the Senate on December 9, 2003.
Prior to becoming Deputy Attorney General, Mr. Comey served
as the United States Attorney for the Southern District of New
York, from January 2002 until the time of his confirmation and his
present post. As U.S. Attorney, he oversaw numerous terrorism
cases, and created a specialized unit devoted to prosecuting international drug cartels.
Mr. Comey graduated from the College of William and Mary, and
received his Juris Doctor from the University of Chicago Law
School.
Mr. Comey, would you please raise your right hand and stand
up, and I will swear you in.
[Witness sworn.]
Chairman SENSENBRENNER. Thank you, Mr. Comey. Let the
record show that Mr. Comey answered in the affirmative. Without
objection, his written statement will be included in the record as
a part of his testimony.
And Mr. Comey, you are now recognized.
TESTIMONY OF THE HONORABLE JAMES B. COMEY, DEPUTY
ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

Mr. COMEY. Thank you, Mr. Chairman, Mr. Conyers, Members of

the Committee. Thank you for this opportunity to come and to talk,
but most importantly to listen and to respond to concerns and
questions.
I believe that people should question authority; that people
should be skeptical of Government power; people should demand
answers about how the Government is using its power. Our country, I was taught, was founded by people who had a big problem
with Government power and worried about Government power, and
so divided our powers and then added a Bill of Rights to make sure
that some of their concerns were set out in writing.
I think its incumbent upon the Government to explain how its
using power, how its tools have been important, how they matter;
and to respond especially to the oversight of the legislative branch.
I think citizens should question authority, and should demand the
details about how the Government is using its power.
I worried very much a year ago that we were never going to find
the space in American life to have a debate, a real informed discussion about the PATRIOT Act. Instead, where we had found ourselves was people on both sides of the issue exchanging bumper
stickers; people standing around at a barbecue or a cocktail party
and talking about all manner of things, and someone saying, Isnt
the PATRIOT Act evil? and people would nod and then go on talk-

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ing about whether the Nationals were going to be a real baseball
team or current events of some sort; and that we were missing a
discussion from both sides, a demand for the details and a supplying of the details.
I worried very much about that. I neednt have worried. Thanks
largely to the work of this Committee and to your colleagues in the
Senate, we have had, as you said, Mr. Chairman, a robust discussion and debate about these tools over the last months. And I think
the American people understand them better. I think all of us have
had an opportunity to demand details and respond to the questions.
I look forward to answering any and all questions, especially
those about the details. I believe that the angel of the PATRIOT
Act is in those details. The angel is in demonstrating that these are
tools that make a difference in the life of this country and in our
ability to protect people in this country.
I think the angel is also in the details that demonstrate to folks
that the PATRIOT Act is chock full of oversight, in a lot of ways
that regular criminal procedure is not; full of the involvement of
Federal judges, full of the involvement of the Inspector General,
full of the involvement of this Committee and other Committees in
Congress to conduct rigorous oversight in response to our reporting
about what were doing.
The bottom line, I believe, is that the PATRIOT Act is smart; its
ordinary in a lot of respects; its certainly constitutional. We ought
to make permanent the provisions that have meant so much to the
people that I represent: the men and women in law enforcement
and in the intelligence community fighting the fight against terrorism and crimes of all sorts.
So I thank you for this opportunity. I look forward to a robust
discussion and debate. And I will try my best to answer any and
all questions; and not talk past a question, but respond directly. So
thank you, Mr. Chairman. **
[The prepared statement of Mr. Comey follows:]

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OF

JAMES B. COMEY

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PREPARED STATEMENT

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Chairman SENSENBRENNER. Well, thank you very much. The
Chair will enforce the 5-minute rule, as he has done in the past.
And Members will be called alternatively from one side to the
other, in the order in which they have appeared. The Chair will
recognize himself and Mr. Conyers first, and I will recognize myself
for 5 minutes.
Mr. Comey, section 218, which is the provision of the PATRIOT
Act that tore down the so called wall that inhibited or prohibited
the sharing of intelligence information between the CIA and the
FBI, was enacted to change the culture that inhibited law enforcement and the intelligence community from sharing vital intelligence and criminal information.
Congress recognized immediately after 9/11 that one of the problems that may have contributed to the successful attacks by the
terrorists was the lack of information sharing. This was a problem
that previous Administrations and Congresses had tried to address,
but failed. The PATRIOT Act succeeded. The lack of information
sharing was also criticized by various commissions, including the
9/11 Commission, which was created to examine how the terrorists
were able to attack our country.
Were now considering whether or not to reauthorize and make
permanent section 218. Do you believe that section 218 helped tear
down the wall that prevented communications between agencies?
Should we make this section permanent? And can you give us some
specific details on why we had a problem before 9/11, and how this
was solved?
Mr. COMEY. Yes, Mr. Chairman, Id be glad to, and thank you for
the question. Section 218 changed our world. It is the one part of
the PATRIOT Act that is groundbreaking, earthshaking, breathtaking to those of us who have devoted our lives to this work, because it broke down that wall.
The situation we had before September 11th, as you said, was a
situation that didnt make any sense when youre talking about
fighting international terrorism. My good friend, Pat Fitzgerald,
now the U.S. Attorney in Chicago, was then the chief of the terrorism unit at the U.S. Attorneys Office in Manhattan. And he and
a dedicated group of agents in the 1990s were chasing somebody
named Osama bin Laden, whose name was not a household name
by any means anywhere in this country certainly. But they knew
who he was; they knew what he had done; and they were tracking
him.
And in the course of doing that, they were working with informants; they were conducting surveillance; they were obtaining documents. They could talk to foreign police officers; they could talk to
foreign spies. Most importantly, they could talk to al-Qaeda cooperators. They brought a couple of guys in from the dark side, and
they could talk to them.
There was only one group they couldnt talk to, and that was the
group of equally talented investigators and agents, literally across
the street from the FBI, who were FBI agents conducting the socalled intelligence investigation of Osama bin Laden and al-Qaeda;
conducting surveillance; conducting electronic surveillance; talking
to witnessesall parallel to what these bright people on the criminal side were doing.

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And as Pat Fitzgerald has said, a world in which he could talk
to al-Qaeda, but not to other members of the FBI, was a world in
which we were not as safe as we needed to be.
And I think theres broad support for that, the notion that thats
changed our world. Today, when we approach al-Qaeda, if we have
an al-Qaeda operative or suspected al-Qaeda sleeper cell in the
United States, we conductuse our tools under FISA conduct our
intelligence investigations; but were able to make sure that the
criminal prosecutors and criminal investigators are in the loop and
able to use their tools to incapacitate these terrorists. And that
makes us immeasurably safer.
That is the absolutely most important part of the PATRIOT Act.
And if it were to go away, we would go back to a place that people
dont want us to be. That changed our world for the better, Mr.
Chairman.
Chairman SENSENBRENNER. Mr. Comey, much of the criticism of
the PATRIOT Act has been directed at section 215, which is the
business records part of the PATRIOT Act. When the Attorney
General was here a couple of months ago, he said he was going to
propose some amendments to section 215 to address the concerns
of the libraries and book stores. Could you detail what those
changes are the AG proposes? And also, tell us how many times
this section has been used relative to get library and book store
records, if you can.
Mr. COMEY. Yes, sir. section 215, as you said, has become known
as the so-called library provisionsomething that remains a mystery to me. I tease some of my friends in journalism, to ask them
to do an investigative piece to figure out how it came to be called
that; because it never occurred to those of us in law enforcement,
when we saw that we had a provision that we could obtain tangible
thingswhich was defined as books, records, etceterathat people
would understand books to mean library books.
Regardless, its become the library provision. Weve never used
it in connection with a library or book store, as the Attorney General has said. But the Attorney General has also said that people
have made some reasonable comments about section 215, and some
constructive criticisms.
Among other things, theyve said, Look, you guys in Government
understand it to be a relevance standard, but it doesnt say that
in the statute. So the Attorney General has said that we will support adding a relevance standard. Thats the way weve operated,
and thats what we expect it to be.
Second, folks have said, Look, it doesnt make it clear that were
able to talk to a lawyer, and to challenge if we believe the order
is over-broad or abusive or something like that. And thats a very
good point. And as the Attorney General has said, we support putting that in the statute. So, if someone receives a 215 ordermost
likely in the real world, a credit card issuer, a hotel company, or
a travel record companyand they believe for some reason its inappropriate, they can talk to a lawyer. And there are procedures
in place, and the real power for them to challenge the courtbefore
the court that issued that order. The substance of that order.
Thats reasonable. Thats appropriate.

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But this is a very, very important tool, and it is a tool that offers
far more oversight and involvement of the courts and Congress
than our normal tool to obtain records, including records we could
obtain from a book store or library; that is, grand jury process.
Section 215 requires that an FBI agent go to a Federal judge,
nominated by the President, confirmed by the Senate, who sits on
the Foreign Intelligence Surveillance Court, and make a written
application for an order to obtain documents. So a Federal judge
is involved. Then, requires us to report to Congress every 6 months
on how were using it precisely; what were using it for; and how
many times weve used it.
There is nothing like that oversight in the thousands and thousands of instances every day where we obtain records using the
grand jury process. I think 215 strikes an important balance. It offers oversight and offers a very important tool to the FBI to obtain
records in our most important investigations.
Chairman SENSENBRENNER. Thank you. My time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman.
Several weeks ago, Mr. Deputy Attorney General, Members of
the Committee have submitted questions to the Department of Justice, and weve not had any response. And if you could help expedite a response to those questionsthey are all in the record of the
some-11 hearings that have been heldwe would be grateful.
Now, lets be frank about this subject that were on. Weve had
lots of hearings, but here is the problem. We havent been discussing much more than the expiring provisions in the PATRIOT
Act. Which is fair enough: weve got to make sure we want to keep
them, or we want to let them go.
There have been a few added, but let me review with you the
matters that have not come before the Committee at this point:
The torture and abuse of detainees, Abu Ghraib, Guantanamo,
and other places;
The outsourcing of torture; that is, rendition, sending people to
countries where we know torture is a standard activity;
The practice of closed immigration hearings;
The indefinite detention of thousands of people who responded to
the Department of Justice and then end up being kept and held
without notification to their families or without them being able to
contact a lawyer;
The racial profiling of many of the more than 30 countries with
Middle Eastern origins;
And, the use of FISA authorities on non-terrorism cases.
Now, what we are trying to do hereand were in the process of
deciding this within the Committeeis whether were going to just
review mostly the provisions that are expiring, or whether were
going to have an opportunity to look at the whole PATRIOT Act.
And I dont want to take you into ancient history, but I think you
know the rather murky circumstances of which the original bill
this Committee passed was substituted for a bill that came from
the Department of Justice to the Rules Committee the night before
it came to the floor. Are you aware of that?
Mr. COMEY. No, sir.
Mr. CONYERS. You werent? Okay.

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Mr. COMEY. I mean, Ive heard
Mr. CONYERS. I know.
Mr. COMEY.press accounts, but I was not
Mr. CONYERS. Right.
Mr. COMEY. I was happily ensconced as an Assistant U.S. Attorney in Richmond at the time.
Mr. CONYERS. All right. The other matter that I want to bring
to your attentionand you may be one of the people thatll have
to send the letter back with us giving us additional comments to
these questions. Ive got two more.
The Department of Justice has failed to bring any criminal prosecutions for the abuse of detainees that took place at Abu Ghraib.
In your view, or within your knowledge, does the Department believe that the abuses, the electrocution shocks, the beatings, the
humiliations that occurred, were legal?
And my final question is, can you guarantee the Members of this
Committee that the Department of Justice is not holding any individual in the war of terrorism, that youre aware of, who is the victim of misidentification similar to that in the Brandon Mayfield instance? The Department held Seattle attorney Brandon Mayfield as
a material witness to Madrid train bombing, and the FBI incorrectly identified Mayfield through a fingerprint found on a bag in
Spain.
So those are the questions. My time has expired. And I suggest
you spend as much time writing a response, or getting it in any
way that you can. I do notWould you allow him to answer, Mr.
Chairman?
Chairman SENSENBRENNER. Mr. Comey, you can answer the
questions verbally, if you know the answers. And if you dont know
the answers, please indicate, and well include your written response in the record.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. COMEY. Thank you, Mr. Chairman. Mr. Conyers, starting
with the last one, I am not aware of anyone whos being held anywhere in the Federal criminal justice system based on a case of
mistaken identity. If I were to learn of that, I wouldnt be here
today. Id be working to try and fix that.
Youre correct; Mr. Mayfield was held, by order of a court, on application of the Government, for 2 weeks, as I recall, as a material
witness, based on a mistake.
You asked me if Iwith respect to the abuse of detainees at Abu
Ghraib. Based on the pictures Ive seen, which Im sure youve
seen, a whole lot of it looks criminal to me. Im also aware, though,
that people are being prosecuted for that in the forum in which the
jurisdiction lies, which is, for the military personnel, in the Court
of Military Justice.
The Department of Justice does have under review at least one
matter related to that that relates to a non-military employee.
Thats the area where we would have jurisdiction. But its something we take very, very seriously, and pursue very, very aggressively.
And I think thatsI think those are the ones Im able to answer
at this point.
Mr. CONYERS. Thank you.

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Chairman SENSENBRENNER. The gentleman from North Carolina,
Mr. Coble.
Mr. COBLE. Thank you, Mr. Chairman.
Mr. Comey, you are indeed correct when you said earlier that
governmental authority should be challenged and questioned. We
have provided many forums for that. Our Subcommittees had nine
hearings, as you probably know.
I want to share with you and with my colleagues what happened
to me back in my district about nine or 10 months ago. A constituent came to me and he said, Weve got to do something about
this PATRIOT Act. He said, Its trampling all over rights of everybody here, there, and yonder. And I said to him, I said, Well,
sir, can you give me an example how you have been adversely affected by it? Well, no, I cant do that, he said. I said, Well, can
you give me an example how anyone you know has been adversely
affected by the PATRIOT Act? Well, I cant do that, either. I
said, Well, youre not helping me any.
Now, Im not suggesting, Mr. Comey, that the PATRIOT Act is
a perfect piece of legislation. I am suggesting that much misunderstanding has surrounded it, as was evidenced by my conversation
with my constituent.
At one of our hearingsstrike that. At several of our hearings,
there were some recommendations, Mr. Comey, that section 220
that is, to allow for the recipient, usually an ISP, to challenge a
nationwide search warrant in the district where it is issued, or
where it is served. As we all know, currently section 220 allows
challenges only in the district where its issued.
Now, at first blush, I dont see a problem here. But do you see
a problem where you might have different districts reviewing or examining or authorizing a warrant that may have been issued in
one district, served in another; rather than an appeals court making that determination? Do you see a problem if we did in fact
amend 220?
Mr. COMEY. Potentially, Mr. Coble, on its face, I agree with you.
My first reaction to it was, Well, thats not a big deal. But it
might be a big deal because, first of all, youd have a district judge,
in a district that had not issued it, passing upon it; so not have
spent time reviewing it. You wouldnt be going to the judge that
had the expertise and had issued the order in the first place. So
Im not sure how efficient it would be from a judicial perspective.
But potentially complicating is the fact that the districts, if
theyre in different circuits, may operate under slightly different
rules that govern suppression hearings, that govern standards to
apply when theres a fourth amendment challenge. And so youd
have a tricky question of having one circuit and a district in that
circuit trying to evaluate under its standards, or maybe those of a
foreign circuit, what the judge had done originally.
I dont think this is enormously burdensome. Its not a problem
that Ive heard from ISPs. In my experience, ISPs are fairly sophisticated businesses and dont find it daunting to have, if they want
to move to suppress or to challengeexcuse me, if they want to
move to challenge a warrant, to be able to do it in a district other
than the one in which theyre physically located.

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Im not sure anything is broken there, I guess is what Im trying
to say. And I worry that, because it seems on its face like not a
big deal, if we made that change, we might bollox up what is a
process thats working pretty well.
Mr. COBLE. I thank you, sir. Another suggestion at one of our
hearings involved publicly announcing how many reporting requirements or inquiries were made. For example, X-number of inquiries were presented to a book store, as opposed to five to a library. Now, I dont want to seem paranoid, Mr. Comey, but I dont
want to give anybody who wants to do harm to us any information
that might in fact be beneficial to them.
We in the Congress receive this classified information already.
Do you see any advantage to making this information as public
knowledge?
Mr. COMEY. Thats a hard question. And we get beat up all the
time and accused of being paranoid for over-classifying and not
wanting to release numbers. And as was discussed earlier, the Attorney General took the step, as Attorney General Ashcroft did, to
declassify some numbers.
The reason we dont want to have those numbers out there is not
because were looking to hide them; especially from Congress, because Congress is going to get them anyway. We just dont want
to give any additional clues to the bad guys; especially when the
bad guys are terrorist groups that really, really want to do horrific
damage in the United States.
And so people say to me all the time, you know, Whats the
harm if you declassified the number on a regular basis? And I
turn it around a little bit and say, Well, there may not be any
harm, but given the nature of what I do, shouldnt there be a really
good reason to tell the bad guys how often Im using a tool in this
place or in that place? Sometimes I cant figure out how it would
help them exactly, but theyre pretty clever people who are not only
clever, but willing to die to kill people.
Mr. COBLE. Theyre clever people, Mr. Comey, who want to kill
you, and theyre willing to kill themselves to make a point.
Mr. COMEY. Yes, sir. And that makes me proceed very, very cautiously.
Mr. COBLE. Thank you, Mr. Comey. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from California, Mr. Berman.
Mr. BERMAN. Well, thank you very much, Mr. Chairman.
General Comey, as I mentioned to you in my office, I have a
number of concerns about actions that arent part of the PATRIOT
Act, but relate to unilateral actions taken by the Administration on
issues that fall squarely within the jurisdiction of this Committee;
even though in these areas we havent at this point offered input.
Id like to talk to you about four of these areas. One of them is
detention of non-citizens without notice of charges. The second is
the blanket closure of immigration proceedings by the so-called
Creppy memo. The third, automatic stays of bonds. And the
fourth, denial of individualized bond hearings.
What each of these policies has in common is that they are all
a one-size-fits-all policy applied in immigration cases across the

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board, whether or not they involve matters of national security,
and with little or no balance in terms of due process.
Ive raise these issues in previous hearings, and Attorney Generals have acknowledged we need to improve and mistakes were
made. I think at the time, as we consider the sunset provisions in
the PATRIOT Act, Id like to get past the acknowledgement of errors and into a discussion of solutions.
Mr. Delahunt and I introduced the Civil Liberties Restoration
Act, where we tried to strike a balance, without taking away any
of the powers the Department has that they believe are vital to the
war on terror. I think weve found a solution on each of these
issues. Id like to hear your thoughts on them.
First, on the issue of notice of charges to detained non-citizens,
we provided in section 412 of the PATRIOT Act a way for you to
hold aliens suspected of involvement in terrorism for up to 6
months without approval of a judge, subject only to issuance of a
writ of habeas corpus, as long as they were given notice of the
charges against them within 7 days.
As far as weve been told, that power has never been used. And
instead, it was circumvented in favor of a policy put in place before
the PATRIOT Act that allows people to be held for indeterminate
periods of time with no notice of charges.
Our bill would leave section 412 undisturbed, but replace the policy the Department put in place with a requirement that a notice
to appear be served on every non-citizen within 48 hours of his arrest or detention, and that those held for more than 48 hours be
brought before an immigration judge within 72 hours of arrest.
Youd still have the 412 authority to hold for up to 7 days, and then
to keep in detention in cases of suspected terrorism, espionage, and
other provisions set forth in 412.
Second, the Creppy memo, the blanket closures of immigration
hearings following September 11. On this policy, the Civil Liberties
Restoration Act would end the across-the-board closure, but would
still authorize closure of all or part of an immigration hearing
when the Government can demonstrate a compelling privacy or national security interest.
Third and fourth are two issues that Id like your thoughts on,
also. They deny bond to whole classes of non-citizens, with no individualized hearings before a judge, is one of them. And another
that enables a Government lawyer to unilaterally nullify a judges
order to release an individual on bond after finding that he is neither a flight risk nor a danger to the community.
On the blanket denial of bond issue, the CRLA [sic] would make
a shift from a one-size-fits-all policy to a case-by-case approach, to
provide detainees, except those in categories specifically designated
by Congress as posing a special threat, with an individualized assessment as to whether the non-citizen poses a flight risk or a
threat to public safety.
And finally, on the automatic stays of bonds, our bill would permit the Board of Immigration Appeals to stay the immigration
judges decision to release an alien for a limited time period, when
the Government is likely to prevail in appealing that decision and
the board finds there is risk of irreparable harm in the absence of
a stay.

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So Id be, one, interested in your comments on this and, secondly,
I would in the context of dealing with the PATRIOT Act at the
point where we get to marking up, would like the opportunity
even though these arent specifically PATRIOT Act provisions, but
they all are directly related to the events and actions taken after
9/11have a chance to see if we can rectify the balance somewhat.
Thank you.
Mr. COMEY. Thank you, Mr. Berman. And as you said, these are
not PATRIOT Act issues, per se; which is one of the challenges we
have in dealing with the PATRIOT Act. Folks sort ofyou know
theyre not, and I know theyre not, but people tend to lump them
together. But theyre important issues, nonetheless.
Mr. BERMAN. And I take your point about the confusion out there
as to what is or isnt. Its quite widespread.
Mr. COMEY. Yes, big challenge. And I pretend to know a lot
about a lot of things. The one I will not pretend to know a lot about
is immigration laws. I think I confess to you. But I can comment
on a couple of these.
Maybe revealing that I am a short-timer, I never liked the blanket closure of immigration proceedings, because its a one-size-fitall approach. And if our lawyers can demonstrate that it ought to
be sealed, well get that from the judge and so I thinkand thats
where we are now. We proceed on a case-by-case basis. To say all
of a certain class must be closed, frankly, is not smart, and makes
us take a hit that we dont need to take. I mean, if we can demonstrate it, lets demonstrate it. If we cant, lets have it be an open
hearing.
With respect to your concerns about due process, my understanding, which is non-expert, is that there are no immigrants who
are arrested on immigration charges who are held without notice
of their charges; that there is a requirement that they brought before an immigration judge to have an applicationopportunity to
apply for bond and to have notice of the charges. It may be
what
Mr. BERMAN. What about the Inspector Generals report?
Mr. COMEY. Well, the Inspector General found in the practice in
the months after September 11th that there were a whole bunch
of people who were sort of held until cleared, and that was a screwup; that that was not consistent with what the policies and procedures that the regulatory regime lays out are.
My understanding of what the regulatory regime is is that you
have to haveits sort oftheres a lot of due processI was frankly surprised when I tried to educate myself on itthat people have
an opportunity to appear promptly before a judge, to apply for
bond, to obtain counsel if they wish, to contact family members;
and that the problems that the IG found were that procedures were
not followed; and that people were held in kind of a limbo state
that was inappropriate; that they were not given notice of why they
were held, they didnt have a reasonable opportunity to contact
counsel or family members. And those are things that were the
subject of the IGs report. But Im not sure the procedures are broken.
Mr. BERMAN. Well, Id like to take a chance at some pointnot
nowto show you

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Chairman SENSENBRENNER. The gentlemans time has expired.
Mr. Comey, you can answer the questions that Mr. Berman asked
before the red light went on, but there are a lot of other Members
that would like to have a shot at you, too.
Mr. COMEY. Okay. I think I tried to, and Im sure the Departmentexperts in the Department will have an opportunity to offer
views on those particular provisions. Mine would be too uninformed
to add more, I think.
Chairman SENSENBRENNER. And with that, the gentleman from
Texas, Mr. Smith, is recognized.
Mr. SMITH OF TEXAS. Thank you, Mr. Chairman.
Mr. Comey, thank you for your testimony, and also for your answers to the earlier questions. Id like to ask you about a subject
that was dealt with in your written testimony, but that hasnt been
mentioned so far today. And that is the question of sunsets.
Several people have suggested that, rather than eliminate the
sunsets, we simply extend the sunsets; particularly in regard to
section 218. Why would that be a good or bad idea?
Mr. COMEY. It would, in my opinion, be a very bad idea to continue the sunsets, generally; but particularly with 218. Because
what 218 does is foster cultural change, whichall of us work in
big institutionsis enormously difficult in big institutions.
And I worry very much that if we hung out there the prospect
that the destruction of the wall might be reversed, we will never
get people to embrace the idea that we need to have everybody
communicating, sharing information in the counterterrorism realm.
Weve made great progress. Somebody who went to Mars in the
summer of 01 would not recognize our counterterrorism operation
today. But we need to do better. And 218 is what has given us the
space to knit together everybody who matters in counterterrorism.
And if people thoughtsort of like living in a house you think
someone might come and kick you out of: Youre going to maybe
not unpack your stuff, because you might get kicked out. And I
dont want people to think theyre going to get kicked out of 218.
Mr. SMITH OF TEXAS. So you oppose any sort of continuation of
any sunsets, whatsoever?
Mr. COMEY. I do. I think the answer, though, is rigorous oversight. I think we ought to be dragged up here and drilled and
asked, How are you using this power? Why does it matter? on a
regular basis. I dont think we need sunsets to do that, for you to
scrub how were conducting ourselves. And I support that.
But the sunsets send a message that theres no permanence to
these important tools, and that undercuts the ability to get the bureaucracy to embrace them and to understand theyre part of our
arsenal.
Mr. SMITH OF TEXAS. Okay, thank you, Mr. Comey. My next
question deals with a television advertisement that has been run
by the ACLU, that claims that section 213 of the USA PATRIOT
Act allows law enforcement to search out homes without notifying
us; implying that this provision gave Federal law enforcement the
authority to conduct searches without ever providing notice to the
individual whose property is searched. Is this an accurate description of section 213?

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Mr. COMEY. No, sir, it is not. And its one that Ive spent a lot
of time talking to folks about, and its driven me a bit crazy.
We have had for yearsdecadesdelayed-notice search warrants
in this country. Thats what we in law enforcement call them, because its accurate. You donttheres never a circumstance when
youre doing a criminal search that you never have to tell that the
search was conducted. What was the circumstance before the PATRIOT Act is that in a limited set of circumstancesI would estimate probably 50 times a year in the whole countrya judge would
give you permission, based on a written showing of probable cause
and a written warrant, to conduct a search and simply delaynot
get rid of, but delay telling the bad guys that you were there; to
save lives, to preserve evidence, to protect witnesses.
The PATRIOT Act simply enshrined that in black-letter law so
we have the same standard across the country, and gave judges the
ability to set periods of time that they believe reasonable, based on
their knowledge of the facts, to delay notice. It will be given.
I have personally usedand I wont take the time herebut Ive
personally used delayed-notice search warrants many times, and I
think that in the process weve saved lives, in my career as a prosecutor. And if we lost that tool, anybody who understands itand
I think people at all points understand itwould realize we were
less safe.
Mr. SMITH OF TEXAS. Okay. Thank you, Mr. Comey. One last
question, and this deals with section 201. If 201 were allowed to
expire, is it true that criminal investigators could obtain a courtordered wiretap to investigate mail fraud in obscenity offenses, but
not offenses involving weapons of mass destruction?
Mr. COMEY. Yes. It would return us to the criminal predicate list
that supported wiretaps that existed before, and I dont think anybody wants that. We need to be able to use that tool, certainly in
the fraud and child pornography cases, but also where the stakes
are impossibly high.
Mr. SMITH OF TEXAS. Okay. Mr. Comey, thank you very much.
Those are very good answers to my questions.
Chairman SENSENBRENNER. Thank you. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you. Mr. Comey, its good to see you again.
Mr. COMEY. You, too.
Mr. SCOTT. You mentioned in your opening remarks that there
is certain language that is not helpful in promoting an honest dialogue about this legislation. Would that include language such as,
To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists; for they
erode our national unity and diminish our resolve?
Mr. COMEY. I may be a short-timer, Mr. Scott, but I would prefer
not to focus on anybodys words in particular. Any words that chill
aggressive questioning of Government authority I think are not
helpful. As I said in my opening, I think people should demand to
knowall points of the political spectrum. I think Republicans
should have as big a problem with Government power as Democrats.
Mr. SCOTT. You recognize the words?
Mr. COMEY. Ive heard them before, yes, sir.

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Mr. SCOTT. You mentionedyou explained how in section 215,
what were calling the library provision, you went to great
lengths to explain how the judge was involved. Is that an important part of 215?
Mr. COMEY. I believe it is, yes.
Mr. SCOTT. On roving wiretaps, when you have gotten probable
cause, not that a crime has been committed, but the probable cause
that the target is an agent of a foreign governmentwhich means
you can get the wiretap without probable cause of any crime, just
that youre trying to get intelligence information which may not be
criminal, just, you know, information on a trade deal, something,
no crime as a predicateand then you expand this as a roving
wiretap, is it important that you ascertain before you start listening in that the target is actually in the location where youve
placed the bug?
Mr. COMEY. It may be important as a practical matter, because
we dont want to waste time. But in intelligence investigations,
given the nature of the people were following and surveilling, both
with spies and terrorists who are trained to look for us and to be
very careful, Im troubled by an ascertainment requirement; which
would require us, as you said, Mr. Scott, as we do in the criminal
context, to know that the target is the one on the phone or the target is the one near the bug.
Mr. SCOTT. Well, I say this because weve heard from witnesses
before, like the Attorney General, that some of theseyou know,
we reduced the standard from the purpose of the wiretap being foreign intelligence to a significant purpose, which invites the question: If it wasnt the purpose, what was the purpose? And the answer, of course, is youre running a criminal investigation without
probable cause.
Now, since youre running a criminal investigation, isnt it important that the people youre listening in are actually targets of the
wiretap? I mean, you could put these all over town where the target may be using the phone. If he leaves, shouldnt you stop listening?
Mr. COMEY. Well, youd like to, because you dont want to waste
the time, but the way
Mr. SCOTT. Well, no, no. No, youre not wasting time. Youre listening in to people you wanted to listen in to. I mean, because
youre running the criminal investigation under the auspices of this
less strict standard of foreign intelligence. Should you be able to
take advantage of the criminal investigation with the lower standard by listening in, when the target isnt even there?
Mr. COMEY. Well, first of all, youd better not, if you work for me,
be conducting an investigation to obtain criminal information using
FISA unless the following is true: Significant purpose, as you said,
Mr. Scott, is to obtain foreign intelligence. And if there is an additional purpose to obtain criminal information, its only criminal information related to foreign intelligence crimes, terrorism crimes or
espionage crimes. Thats what the FISA court of review has told us
is the law, and so wed betterwe are following the law.
Mr. SCOTT. Well, we changed the law under the PATRIOT Act.
Mr. COMEY. Well, Ive heard that said, but the court of appeals
that governs this has said you may only collect information of for-

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eign intelligence crimes if thats an additional purpose to the collection of foreign intelligence.
But the ascertainmentthe way we collect intelligence information, we strike a balance. Because of the nature of the target, we
stand off a little bit more. We collect, and dont necessarily review
real-time whats being collected. And we account for that with the
rules that govern the storage and dissemination of that information. And thats a balance thats been struck to recognize that
criminal investigations are different, and I think its a reasonable
one.
When you drill down and look at the way we follow spies and follow terrorists, it would make it much more difficult to operate intelligence investigations if the agents were required to ascertain in
every circumstance that the target is there at the bug or there on
this particular phone.
Mr. SCOTT. Could you
Mr. COMEY. Rather than collecting and minimizing it later, and
strictly controlling what you do with U.S. person information. Im
sorry, sir.
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Comey, welcome. We are pleased to have your testimony today. Looking at section 217, some have suggested that in order to better protect privacy, it should be more difficult under section 217 for a computer
owner to seek the assistance of law enforcement in monitoring
hackers who are trespassing on his or her computer.
I believe, however, that we must be also concerned about the privacy rights of those who are being victimized by the hacking. And
I wonder if you could please explain how hackers threaten the privacy rights of law-abiding Americans, and how section 217 has assisted the Justice Department in protecting privacy.
Mr. COMEY. I think of the computer today, sort of the cyber
world, as like our house. I mean, so much of yourso much of my
business, I think of all of our business, including our childrens
business, is in that computer and online that I think of it like a
house. And what 217 allows us to do isif a bad guy breaks into
the house, the person who owns the house can invite the police to
come in and help catch the bad guy.
All of us knowI know, because Ive tried to get some of this
software on my computer to stop people from hacking and taking
over passwords and taking over my accountthat this is a scourge
that we deal with all the time. Thats on an individual level.
If a hacker gets into an Internet service provider, its not just my
house. Its as if we all live in one enormous condominium, and the
bad guy is in there, able to open all the doors and take all of our
stuff. We think that its very, very smart law enforcement to allow
the owner of that condominium to call 911 and say, Cops, get in
here, help me find this guy whos somewhere in here rummaging
through peoples belongings.
If you make that more cumbersome, I just think you make it
harder to catch the bad guys in that sort of electronic house, if that
makes any sense.

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Mr. GOODLATTE. It does. The Department of Justice has informed
the Congress that the September 11th terrorists utilized our public
libraries before they killed 3,000 of our citizens. Yet some are proposing to exempt libraries and book stores from providing business
records that are relevant to a terrorist investigation. And I wonder
if you could tell us, if section 215 were amended to exempt libraries, what would be the effect?
Mr. COMEY. Oh, gosh. I think an effect that nobody really wants.
We dont want to create sanctuaries any placeno less libraries
for bad guys, especially terrorists. But we have a big problem with
pedophiles going to libraries, fraudsters going to libraries. Weve
had spies in libraries. And we know terrorists go there, because its
Internet access and they think it makes it harder for us to follow
them and to know what theyre doing.
If we ever sent a messageand I worry, to be frank, that weve
sent that informally, with some people posting signs at libraries
saying basically that, We scrub the hard drives, or Be careful
that we move toward creating a sanctuary for this kind of activity.
And nobody wants that. Librarians dont want that. Nobody wants
that.
What people want to discusswhich is reasonableis whats appropriate for the Government to be able to collect information in
that forum and others? And Im happy to discuss that.
Mr. GOODLATTE. To your knowledge, have there been any abuses
of the section 215 powers?
Mr. COMEY. No, absolutely not.
Mr. GOODLATTE. Have there been any substantiated reports of
abuse of the 18 orders that have been granted under section 213
for delayed notification search warrants?
Mr. COMEY. No. And as I said earlier, thats a tool thats supervised by Federal judges. And Ive spent my life with Federal judges
of all stripes, and they are pretty good overseers.
Mr. GOODLATTE. Some have used section 213 and other provisions of the PATRIOT Act to scare the public, claiming that this
is a new authority that allows law enforcement to enter your house
and secretly search it. The implication appears to be that section
213 eliminated the existing probable cause requirement that a
crime is or is about to be committed. Is section 213, that authorizes
delayed notice, a new authority, or a codification of existing court
decisions?
Mr. COMEY. Codification of existing court decisions, and a practice thats been approvedin fact, was developed by Federal
judges, and concluded to be reasonable under the fourth amendment. I used it as an Assistant U.S. Attorney before it was in the
PATRIOT Act, to do a search, to save lives, when a drug gang was
coming into Richmond, Virginia.
Mr. GOODLATTE. And it does not change the standard for obtaining a search warrant?
Mr. COMEY. Oh, no. It still requires a written demonstration
based on a sworn affidavit that makes out probable cause, and a
written search warrant affidavit from the judge. All the judge does
is makes a determination that, Because of the danger here, I will
let you delay notice for a brief period of time.

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Mr. GOODLATTE. Let me get one more question in. In evaluating
the need for roving wiretap authority in FISA investigations, I
think that we need to take into account the ability of potential targets to evade surveillance. Based on your experience, do terrorists
and spies attempt to thwart surveillance? And if so, how skilled are
terrorists and spies at thwarting surveillance?
Mr. COMEY. Thwarting surveillance is their stock in trade. They
are, unfortunately, very good at it. When youre talking about
spies, youre talking about people that other governments spent
lots of time and money training to stay away from us. Terrorists
do the same thing. Al-Qaeda trains its people to deceive; to avoid;
to hide.
It is an authority that is important when youre talking about
drug cases. And thats why Congress gave it to us in the 1980s,
because drug dealers were slippery characters. You cant compare
in slipperiness drug dealers to terrorists and spiesorders of magnitude different. If we need these tools for drug dealerswhich we
doboy, we sure need it for terrorists and spies.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you, Mr. Chairman.
General, first of all, before I ask my questions, let me say I want
to associate myself with the comments of the gentleman from California, Mr. Berman. It seems to me that what he was driving at,
the need for specificity in some of these with some of these tools,
really defines the difference between due process and arbitrary
power. And much of what were doing, or what were dealing with,
is very high risk of the use of arbitrary power; which is un-American, our tradition. And thats what were getting at.
Last week, at a Subcommittee hearing, Mr. Matthew Berry, the
counselor to the Assistant Attorney General for the Office of Legal
Policy of the Department of Justice, introduced the following hypothetical dealing with national security letters.
He said, suppose investigators were tracking a known al-Qaeda
operative, and saw him having lunch and conversing with an individual. Mr. Berry explained that such a situation would meet the
relevance standard required for the FBI to issue a national security
letter under section 505 of the PATRIOT Act.
Now, lets take this hypothetical further. That person has been
tainted and could be usedcould be the target of a national security letter, of an NSL, for sitting next to a known al-Qaeda operative and politely making small talk. Sit down in Starbucks next to
who knowsokay.
Now, lets say that they were having lunch at the food court.
From the food court, she walksthe person who happened to sit
next to the al-Qaeda operativeto Barnes & Noble right there at
the mall. Can the FBI then be justified in using a self-authorized
NSL to demand records on her from the book store?
She then walks to a jewelry store and purchases something.
Could those records be sought using an NSL? She then decides to
leave the mall, and walks to her car. Can the FBI get her records
using an NSL from the car dealership or the rental agency?

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She drives to the public library, and there uses a computer to
make travel plans through the online agency. Using a national security letter, can her private records be sought from the public library, the Internet server, the travel agency? You get the point.
How far do we extend this?
Furthermore, would the people she came into contact with during
this time also be tainted with suspicion and be subject to NSLs,
given their supposed relevance to a national security investigation?
The records were talking about are very private and sensitive.
They show a persons private life and, as such, should enjoy a rather high standard of protection. Would you support legislation reestablishing the standard that the information sought be based on
specific and articulable facts that suggest that that information
pertains to a foreign power, or to one or more of its agents? Or are
we on an open-ended fishing expedition that extends to the known
universe, as apparently my hypothetical would seem to suggest?
Mr. COMEY. Its a very good question. And the same point is
made not just with respect to NSLs, but with respect to 215.
Mr. NADLER. Absolutely. But the NSLs seem to me even more
Government arbitrary power than 215.
Mr. COMEY. Because theres no judge involved, especially.
Mr. NADLER. No judge at all, thats right. Its just a field agent
a field office of the FBI.
Mr. COMEY. My concern with raisingwith putting a specific
and articulable facts standard; or some have suggested reasonable articulable suspicion; others have gone so far as to say probable cause, which I know youre not suggesting
Mr. NADLER. Although Ive thought of it.
Mr. COMEY. Okay. I hope you dont suggest it. Im trying to think
of real-life examples, and the one I come up with isand its fair
to draw those kind of hypotheticals outis Mohamed Attas roommate. So I keep focusing on, what if I had these tools before September 11th, and just after September 11th I found out that a guy
had lived in Mohamed Attas apartment, but I knew nothing else
about him. What reasonable investigation would I, as a career
prosecutor, want to conduct?
I would tell the FBI I want his credit reference record, I want
his bank records, I want his travel records, I want his phone
records. And what do I know, besides that this guy lived with a
really bad guy? Do I have specific and articulable facts that justify,
that show that these records are going to be
Mr. NADLER. But where do you draw a line? What if he sat down
in Starbucks and talked to somebody. That was the hypothetical
given us by the counsel to the Assistant Attorney General.
Mr. COMEY. Right.
Mr. NADLER. I mean, we hope we dont live in the world of the
wonderful show that I like to watch every Monday night, 24,
where anything goes. I mean, yes, any suspicion based on anything,
if there are no standards, if the king can give a writ of assistance
to anybody in 1760, yes, it might help an investigation. But you
have to have some protection.
Mr. COMEY. Yes.
Mr. NADLER. Where do you draw that?

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Mr. COMEY. And its a show that always shows the prosecutors
as the real namby-pambies.
But its a hard question to answer. I cling to the relevance standard. I dont believefirst of all, Im not sure you could obtain some
of those records under NSLs, given the limitations on the material
that they can obtain. But they wouldnt be relevant. But I worry,
if you import this. And Im not saying its unreasonable to suggestwhen you put that standard in
Mr. NADLER. Let me ask you one further question before my time
runs out. In Doe v. Ashcroft, the New York District Court held
NSLs unconstitutional because the issuance of these letters is accomplished without any judicial review and are subject to an indefinite gag rule. Given this decision, do you agree that additional
legislation may be warranted?
Would you work with this Committee to legislatively clarify that
an NSL recipient has the right to challenge both the requests and
the gag orders in court? Would you support a congressional effort
to permit the recipient of an NSL to disclose receiving such a letter
in order to comply with the request, and/or to consult with legal
counsel?
And finally, would you have a problem with Congress setting a
90-day time limit for the gag orders based on exigent circumstances, with the possibility of 180-day extensions available
from the court of appeals?
Chairman SENSENBRENNER. The gentlemans time has expired,
and the witness will answer the question.
Mr. COMEY. We will work with you on all of that. I know there
is legislation thats pending to address some of those. I dont think
weve taken a position on it. But a lot of it is smart and reasonable.
I dont have that same feeling about the 90-day/120-day. Given
the nature of the people that were dealing with in intelligence investigations, I think the balance has to be struck in favor of indefinite. And at some point
Mr. NADLER. How about that for conditional renewals?
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from California, Mr. Lungren.
Mr. LUNGREN. I thank the Chairman. And I thank Mr. Comey
for the open and forthright way with which you are facing this.
And obviously, we wouldnt be here discussing the PATRIOT Act
or the sunset provision, had it not been for 9/11. And sometimes
we have to remind ourselves of that.
I was reminded of that today when, in my home district, we received news of a father and a son charged with lying to Federal
agents about the sons alleged training at an al-Qaeda camp for a
mission that the judge said was to kill Americans whenever and
wherever they can be found.
Im not sure weve ever faced that before with a transnational organization that has indicated it is the duty of all those who have
allegiance to the same beliefs they have to kill Americansmen,
women, and childrenwherever and whenever they can be found.
Having said that, there is this concern about the PATRIOT Act;
whether its real or imagined, whether its perception or reality.
And for that reason, I lean toward putting sunsets in this legislation; not because, Mr. Comey, I want to upset the cultural change

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thats trying to take place in the Justice Department. But I point
to a cultural change thats needed in the Congress.
I think were doing a tremendous job of oversight here, I think
this Committee is. And I think that we have had good cooperation
with the Department of Justice. But oversight has not been the
strong suit of Congresses in the past. And I wonder whether we
would be as vigorous if we didnt have the obligation of this. And
some of us have a feeling that not only is it something necessary
to effect the cultural change on the executive branch, but also the
legislative branch.
Do you truly think that if we had sunset provisions for section
215, for instance, and some of the others, that that would be a real
interference with what youre accomplishing and what you hope to
accomplish in the future with the changes brought about by the
PATRIOT Act?
Mr. COMEY. The honest answer is I dont think it would be a disaster. But heres another reason why I dont think it makes sense.
And Im not in any position to talk about oversight, except that, as
I said to the Chairman, we have seen, I think, remarkable oversight, as you noted, here.
Chairman SENSENBRENNER. The Chair thanks you for that comment. I think some of your predecessors in your office would not
have done so.
Mr. COMEY. Well, the one thing I can tell you, thoughand its
hard for me to put this into words without seeming small in my
remarksbut we have devoted huge resources and time to this, as
we should. But we have hundredshundreds is fairof people
working on what weve done over the last 6 months, and spending
countless hours collecting information, responding, meeting.
Thats an enormous drain. And it should be. But I hope its a
rare drain, and that we use it to establish that the base line is
sound; that what Congress did in Septemberafter September
11th was sound; and that what we can do going forward is rolling,
and not in a way that makes everybody and his brother in the Department of Justice work on the effort.
We live in a bit of a myth, and that is that we have limitless resources. We dont. And it is a major challenge for us to do this. And
were happy to do it, because it ought to be done. I justto be very
frank, and I wont be here, it would be really hard to do this 3
years from now, or another 2 years from now, when we can substitute for it something that I think is as effective, which is rigorous oversight.
Mr. LUNGREN. Well, it sort of begs the question of whether we
would have rigorous oversight
Mr. COMEY. Yes.
Mr. LUNGREN.if we didnt have this requirement. And you have
talked about the tremendous number of hours that have been put
into it, precisely because the Department thinks its important to
have this reauthorized. And precisely because many of us think its
important to have it reauthorized, we are spending the time to do
that.
I guess, let me ask a question about a specific section, section
212, which allows computer service providers to disclose communications and records in life-threatening emergencies. Number one,

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has that proven to be successful and useful? If so, could you provide some real examples of that? Also, have there been any substantiated reports of abuses of section 212?
And then, its my understanding that that section does not require judicial intervention. Is there a problem with an after-thefact judicial review to see if in fact there was an emergency circumstance that required this?
Chairman SENSENBRENNER. The gentlemans time has expired.
Would you answer the question?
Mr. COMEY. Yes, Mr. Chairman. Section 212 is the life-saver.
Thats how I refer to it, because its not used much in those circumstances, but I met a young girl, 16 years old, fromher parents
brought her to meet me and the Attorney General from just outside
of Pittsburgh, who had met some whacko on the Internet and he
had lured her to meet himshe not knowing exactly who he was
and then kidnapped her and brought her and locked her in a dungeon in, I believe, the western part of the State of Virginia. And
she was saved with 212.
And I wont take the time to explain all the details, but an Internet service provider was able to provide information, because this
whacko sent an e-mail to one of his fellows bragging about that he
had this girl in a dungeon. And they were able to provide the FBI
with instant information on where he was, and they rushed in
there and they saved this girls life. And I was able to shake her
handhad my picture taken with herbecause of 212.
The proposal for judicial review, Im not exactly sure how that
would work. And I worry that it would tie up 212, because its an
emergency situation where the ISP is able to call the policealmost like the house is on fireand provide the information. And
Id have to think through more carefully exactly how post-hoc judicial review would work. I have a hard time sort of figuring it out
on the fly.
Chairman SENSENBRENNER. The gentlewoman from California,
Ms. Lungren [sic].
Ms. LOFGREN. Actually, its Lofgren, not Lungren.
Chairman SENSENBRENNER. Its Lofgren. [Laughter.]
Im sorry. I should know better.
Ms. LOFGREN. Thank you, Mr. Chairman. And thank you, Mr.
Comey. I, to some extent, agree with the comments that we need
to cool down the rhetoric on the PATRIOT Act. I think were here,
and its important that were here, to review the details not just of
the sunsetting provisions of the act, but all of the act.
And yet, having said that, there are people in the country that
everything they dont like they believe is because of the PATRIOT
Act. And I constantly challenge, Where in the act is this misbehavior? Theres things I dont like, too, but its not all in the PATRIOT Act.
At the same time, I think its a terrible mistake to criticize those,
or to question the patriotism of those who are legitimately engaging in oversight to make sure if we have preserved the balance between our civil liberties and our need to have vigorous law enforcement; which is what were doing here today.
Along those lines, I want to go back to section 215. In your testimony, you state that the FISA court has issued 35 orders, but that

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none were issued to a library. At the same time, you say if we exempt or change 215 relative to libraries, you know, its the end of
the world. The roof will fall in; terrorists will make libraries safe
havens.
And I guess Im skeptical of that. And Im wondering if there
isnt some intermediate provision that would assist with the anxiety that is afoot in the land. People are afraid that their reading
habits are going to be interfered with. Their first amendment
rights are in fact being chilled today, because of what people think
is happening, even if its not happening.
And so the question I have is, why not require that personally
identifiable information be exempt from section 215? It is true that
anybody can go in and use a computer terminal in a library, and
they can do good things or bad things. But the libraries Ive been
to dont keep track of whos on the terminals, and its not personally identifiable. Could you answer that question?
Mr. COMEY. Yes, Id be happy to. Something is broken, but I
thinkand I may be impossibly naivebut I think its peoples understanding of 215, and not 215. And if whats broken is their understanding, Im going to work till I have no more breath to try and
fix that; rather than change 215 just because folks dont understand it.
Ms. LOFGREN. What about the personally identifiable information
exemption?
Mr. COMEY. I dont know why we would do that, though, because
that wouldI dont think the sky would fall, but you would create
a sanctuary in those particular places. Because a bad guy would
know, Thats a place I can go.
Ms. LOFGREN. Well, I mean, you can still get the information, if
its personally identifiable; just not through section 215.
Mr. COMEY. If we couldnt use 215 to obtain information that we
could tie to a particular person, say, we were followingagain, this
is the kind of thing that doesnt happen, but if we were following
a terrorist, and he was sitting at a computer terminal, and we
wanted to get the records, his records, and we had done something
that made it impossible for us to obtain records that told us they
were his, I dont know why we would do that. And I dont think
librarians would want that.
Ms. LOFGREN. Let me ask another question. And it goes back to
our need to review the whole situation, not just what is being
sunsetted. I guess in a way it goes back to the earlier comment
about oversight and how much time and effort is being put into answering the questions that Congress has posed. And I assure you,
I dont question that you are putting in a considerable amount of
time.
But after the Attorney General, Mr. Gonzales, appeared before
the Committee, I had two questions that he was not able to answer
on the spot. One had to do with section 218, how many prosecutions for non-terrorism-related crimes had been a result of this section; and then further, about the material witness section, under
3144 of 18 U.S. Code, how many individuals actually ended up testifying before a grand jury.

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I neverhe wasnt able to answer it on the spot, which I can understand. I never got the answer afterwards. Do you know the answer today? And if not, will you promise to get me the answer?
Mr. COMEY. I dont know the answer, and I will promise to get
you the answer. And I can do that with some confidence, because
I know its being worked on very hard. Theyre collectingwere
going out to the field to collect the information so that we can supply it.
Ms. LOFGREN. Finally, I just want to mention that we did not
suspend habeas corpus in the PATRIOT Act. And yet, the detention
of American citizens without charge, without access to counsel, has
been referenced to the general action we took to authorize the invasion to enact the PATRIOT Act. Shouldnt we make it explicitly
clear in any reauthorization that we are not suspending habeas
corpus?
Mr. COMEY. I dont knowcertainly, no one that I know has argued that Congress has suspended habeas corpus, and in fact
Ms. LOFGREN. Then you wouldnt mind if we made that clear in
the act?
Mr. COMEY. Well, I suppose I wouldnt mind. I mean, I dont
know how the legislative process works. But habeas corpus is alive
and well in this country. And in fact, the litigation youre referring
to is pursuant to the habeas corpus, the great writ, and being decided by the courts now, whether the Government has that authority.
Mr. LUNGREN. [Presiding.] The gentleladys time has expired.
The gentleman from Texas, Mr. Gohmert, is recognized for 5
minutes.
Mr. GOHMERT. Thank you, Mr. Chairman. And I appreciate your
being here, Deputy.
First of all, I want to address something that was brought up
earlier very quickly. And that is the so-called abuse or torture some
people referred to, whether at Abu Ghraib or Guantanamo. And Im
deeply offended when I hear that individuals indicate that Abu
Ghraib was some type of gulag. They need to go back and read the
accounts of what happened to our fly-boys in the Pacific in World
War II, when they had internal organs removed to be cannibalized
by their captors; or had holes drilled in the head while their brain
was probed while they were alive, to see what parts responded to
what probing; to have bones repeatedly broken; to be handcuffed
from behind and be hung by the wrists.
These people that think that we are running gulags either have
their head up an earthen or biological hole somewhere. Im concerned.
But anyway, also to read in a local tabloid today that a former
President believes we should close Guantanamo, when perhaps he
didnt protect the country when we had American soil attacked and
our own people taken hostage and nothing meaningful was done for
over a year to ever try to get them out, I have to take that with
a grain of salt.
So with that background and defense of the Nation and things
were doing, there have been abuses. Having been in the military,
I know the UCMJ takes care of those. It is taking care of the
abuses. They are abuses. Theyre not torture. And Ive talked to

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POWs of ours who indicate just that. They would have welcomed
having the abuse rather than the torture and hell they went
through, for example, at the Hanoi Hilton.
So anyway, with regard to 215, though, would you have a problemyou know, I understand this AGs office and this DOJ believes that individuals that get the order to produce records, or
even NSL, thats been interpreted as meaning they have a right to
counsel and can talk to their own attorneys; isnt that correct?
Mr. COMEY. Yes, sir.
Mr. GOHMERT. But thats not written in the law, as I see it or
find it. Would you have a problem with that being written in, so
future AG offices or DOJs would understand you can consult your
own attorney when you get this letter; youre not just, you know,
blindfolded and having to produce records. Do you have a problem
with that?
Mr. COMEY. No, sir. We agree with you on that.
Mr. GOHMERT. Well, I know that I understood that was your position, as far as interpretation. But it seems for future reference it
would be good to have that in there.
I do still have concerns about 215. And I trust implicitly this
AGs office, this DOJ. But like in 215, where it says, you know, to
get the order from the judge it just has to specify that records are
sought for an authorized investigation, that could be to protect
against clandestine intelligence activities.
Hypothetically, if you had a President, an Attorney General, or
DOJ top officials, that believed, perhaps hypothetically, there was
some right-wing conspiracy out there to undermine or hurt the
Presidency, and that they may be involved in clandestine intelligence activities, it just seems like the potential is there for using
this in ways that it was not intended by an abusive President or
an AG.
You might hypothetically even have a DOJ thats so callous that
they may just find a friendly judgeand we know some judges are
more friendly to one Administration than anotherfind a friendly
judge that wasnt supposed to hear a case, just to go get an order
to kidnap a child at gunpoint from people that are holding them.
I mean, those kind of things might actually happen.
So Im concerned about removing the sunset review. You wont
be there next time. But just so that there is that kind of attention.
You foresee that possibility, if youre not there, there is somebody
that could abuse their position?
Mr. COMEY. Its a very good point, Congressman. And I think all
of us should worry about how authority could be abused. I think
with 215, though, there are safeguards that are important to emphasize. One is that youve got to involve the FISA court; not just
any Federal judge. Youve got to go to the FISA court
Mr. GOHMERT. To the FISA court.
Mr. COMEY.selected by the Chief Justice of the United States.
But beyond that, youve got to put it in writing. And then youve
got to tell Congress every 6 months in a written report how youre
using it, what youre using it for. And I think those are checks and
balances that are very important and that are there to check
against just the kind of thing youre talking about.

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Were a nation of laws, not men. We shouldnt rely on that we
like the folks that are in the office. I agree with you. But I think
those checks are in place to check that power, and theyre appropriate.
Chairman SENSENBRENNER. [Presiding.] The gentlemans time
has expired.
The Chair recognizes the gentleman from Michigan, Mr. Conyers,
for a unanimous consent request.
Mr. CONYERS. Thank you, Mr. Chairman. I ask unanimous consent that the gentlelady from Florida representative, Debbie
Wasserman Schultz, soon to be a Member of the Committee, be
permitted to participate in todays oversight hearing, and that it
will not constitute a precedent.
Chairman SENSENBRENNER. Without objection, so ordered. And
the gentlewoman from Florida is recognized.
Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. And thank
you, Ranking Member Conyers.
General Comey, you made a reference earlierand I also want
to ask a question about section 215to pedophilic activity, and
that you would hate to see pedophilic activity be able to continue,
or to continue unchecked, if a change was made in 215. But I
mean, my familiarity with library activity is such that pedophilic
activity has been going on before 9/11 and since 9/11, and there
arent many foreign terrorists who are engagingusing libraries to
engage in pedophilic activity.
In fact, you have been able to utilize grand jury subpoenas and
your authority that existed before 9/11 to go after that kind of activity. So in fact, Ted Koczynski was apprehended as a result of
your ability to examine library records and subpoena them before
9/11.
So why did you need the provisions in 215 to go as far as they
did, and what are you not ablewhat will you not be able to do
if they are changed? Thank you.
Mr. COMEY. Thank you for the question. Youre absolutely right.
I made reference to pedophilia simply, I think, to try to buttress
the broader point: that we dont want any particular place to be a
sanctuary for criminal behavior. But youre absolutely right; 215 is
about foreign intelligence crimes.
We could always use, as you said, the grand jury process to go
after regular crooks, big-time crooks, pedophiles, if they were using
libraries; and we have. Section 215, what it does is it gives that
grand jury criminal power to intelligence investigators. But makes
it harder for them, because unlike a criminal investigator who
wants to use a grand jury subpoena, who could come to an Assistant U.S. Attorney and get the grand jury subpoena, by the PATRIOT Act Congress made the intelligence investigators who want
the same records have to go do it in writing, and do it to a Federal
judge, and get a written order. And that makes it harder for them.
And thats a judgment of Congress, and thats fine. But I think a
lot of times when people focus on 215, they dont realize how we
do it in the criminal context, as you said.
Ms. WASSERMAN SCHULTZ. And I agree with the gentlewoman
from California when she talks about the balance that we need to
strike. I strongly support much of the provisions in the PATRIOT

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Act. This is the most disturbing provision. Its the provision that
I hear the most about, unsolicited, when Im not even talking about
the PATRIOT Act at home. At town hall meetings people bring up
their concern about the library provision.
The two other questions I have is, why did we need to give special powers to the FBI in those investigations, without at least first
making the FBI show some proof that the person might be an
agent of a foreign power? I mean, I realize they have to go to the
FISA court, but they dont really have to show much of anything
that their suspicion is that theyre an agent of a foreign power.
Mr. COMEY. Right. They have to showand weve always understood the statute to say this, but its not explicit, so its one of the
things that we would support addingthat the records sought are
relevant to a foreign intelligence or foreign counterterrorism investigation.
The reason that they dont have to show more than that is this
is a baseline investigative tool; and that, as Mr. Nadler and I were
discussing, if you raised the threshold to make it more challenging,
you have to make a higher showing to get basic records, youre
going to thwart a lot of investigation you dont want to thwart.
And the food court example is not mine, but its if you saw someone in a restaurant and had an animated conversation with a
Mohamed Atta, what do you know about that person? Not much,
but you want to know an awful lot. And if the threshold is raised,
that you have to have some baseline facts before you can start
gathering baseline facts, you thwart an investigation in a way that
I dont think any of us want.
And when you drill down and think about how folks actually conduct these investigations, grand jury subpoenas and 215 orders
have to have the same standard; which is relevance. Thats how we
get started to see whether someone is bad. Or in many, many
cases, what were doing is investigating and clearing somebody, because weve received one of the many poison pen e-mails we get
saying, My neighbor is a terrorist. We have to check that out.
And what do we know, besides somebody wrote it anonymously?
We dont. But we check it out, and when it turns out to be bogus,
thats the end of the matter.
Ms. WASSERMAN SCHULTZ. Well, and the last part of my question
relates to the gag orders. I mean, why do we have to have gag orders on those who receive the orders related to the library records
and other provisions of 215? I mean, that seems to cloak the whole
thing in secrecy.
Mr. COMEY. Yes. No, and that upsets folks. The reason is the
same reason we have automatic gag orders, for example, in the
thousands of bank subpoenas we issue in criminal investigations
every year. Banks cant tell the account holder, by statute, that
weve subpoenaed the records.
The reason we have that there and we have it on the 215 side
is so the bad guys dont know were looking at them, and so good
peopleand this is not something to be ignoredso good people
dont get ruined.
If we walk into an institutiona credit card company or hotel
recordand serve a subpoena or a 215 order, check out one of
these tips that someones a terrorist, if that clerk who gets it can

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tell people, we may ruin a good person by doing that. So secrecy
has two purposes: protect the bad guys from knowing were coming,
and protect the good guys from being ruined. And both of them are
very important to the way we do our work.
Chairman SENSENBRENNER. The time of the gentlewoman has expired.
The gentleman from Florida, Mr Feeney.
Mr. FEENEY. Well, thank you, Mr. Chairman. And first, Id like
to welcome, I guess a day or two ahead of time, our possible new
colleague on the Committee, Congresswoman Wasserman Schultz.
We have a long history in Florida together. And I want to warn my
colleagues on this side of the aisle that we can expect some lively
and engaging discussions and debate with the gentlelady. And
were glad to have her here.
We thank you for your testimony. I had a question Id like to
start with that maybe you cannot answer. And that concerns a trial
ongoing now in Florida with respect to Professor Al-Arian, who is
accused of a number of crimes related to international terrorism.
And Id like you to tell us, if you can, what portions of the PATRIOT Act were helpful in this specific investigation. And also, describe, if you will, the charges against Mr. Al-Arian.
Mr. COMEY. Congressman, as you mentioned, I have to be very
careful
Mr. FEENEY. Yes, I understand.
Mr. COMEY.with a jury sitting in Florida right now, hearing
that case, about what I say. I think I can safely say hes been indicted for providing material support to terrorism, and that theres
been public litigation that much of the evidence that the Government is intending to offer in that prosecution stems from informationevidence obtained through foreign intelligence surveillance. I
really ought to stop there.
Mr. FEENEY. Okay. Well, I appreciate that, and I understand the
caution.
A lot of us who are civil libertarians by instinct and concerned
about Government power are supportive of the PATRIOT Act. We
want to revise it where it needs to be revised. Some of us like the
sunset provisions. I understand that youd like to see some of those,
if not all of them, repealed. But you know, the point is that over
Americas history, at times of national duress and threat to the
very national existenceI mean, the Civil War, for examplecivil
liberties have been strained. And there is a balance that moves
back and forth.
Matter of fact, the Bill of Rights anticipates some of that when
it talks about outlawing unreasonable searches and seizures. And
presumably, whats reasonable during a period of time where there
are little or no threats is different than what is a reasonable search
during times of threats. Matter of fact, Chief Justice Rehnquist has
a great book out on the history of civil liberties during times of duress, called All the Laws But One, which he wrote a good 12, 14
years before the terrorist attacks.
But having said that, the PATRIOT Act is subject to a lot of
myths out there. And if you hadyou know, when I get accosted
on the street, just like, you know, my Subcommittee Chairman
mentioned, people blame all sorts of ills that they experience,

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whether its at airports, or discomfort, on the PATRIOT Act, which
of course have nothing to do with the PATRIOT Act.
If you had 30 seconds or a minute to explain the difference between the PATRIOT Act reality versus myth to the American people, how would you convince us that much of what it has been
blamed for is simply not related to or the fault of the PATRIOT Act
itself?
Mr. COMEY. Thank you, Congressman. The first thing I would do
is urge folks, all walks of life, who have concerns about the PATRIOT Act to demand the details. Always, always, always ask.
When someone says, The PATRIOT Act is evil, say, What do you
mean, specifically? What part of it? And how is that different from
what they can do in a criminal investigation? And so youre saying
the PATRIOT Act does what?
The reason thats so important is it has become a vessel into
which people pour concerns about all manner of stuff that has
nothing to do with the PATRIOT Act. And I think if everybody demands the answerdoesnt just shake their head like one of those
bobble dolls when someone says, Isnt the PATRIOT Act evil?
they will find out that the stuff people are talking about either is
not in it, or whats in it is reasonable, ordinary, and smart. Because its mostly taking what we can do to track drug dealers and
thugs, and give those tools to people tracking spies and terrorist.
And then, something breathtaking; which is the destruction of the
wall, the separation between counterterrorism intelligence and
counterterrorism criminal.
And if folks will simply demand the details, as hard as it can be,
I think at the end of the day theyre going to see theres an angel
in those details.
Mr. FEENEY. Finally, has the standard for the demonstration
that you have to establish under FISAs 207 as to who is an officer
or employee of a foreign power, has that changed under the PATRIOT Act? And what is that standard? Presumably, the bad guys
versions of James Bond dont come register as a foreign agent or
employee. What do you have to establish, and has that changed
under the PATRIOT Act?
Mr. COMEY. We have to establish probable cause to believe that
someone is an agent of a foreign power. And that can be a foreign
power as commonly understooda foreign stateor a foreign terrorist organization that the court has found to be a foreign power.
So probable cause to believe that. Or, that someone is engaged in
clandestine activities, intelligence activities, on behalf of a foreign
power.
My understanding is that was the standard under FISA before.
Its the standard that the FISA courts been applying since 1978.
And it requires a written showing of probable cause. And the reason I keep repeating that is folks dont realize that. People are always telling me, Oh, you have a different, lower burden in FISA.
Huh-uh. Its the same probable cause we use to get arrest warrants
and get search warrants.
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentlewoman from California, Ms. Waters.
Ms. WATERS. Thank you very much, Mr. Chairman.

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And Id like to apologize if this question has already been asked
or discussed. I thank you for being here. Im concerned about the
national security letters. And Im not clear about whether or not
the Justice Department continues to use national security letters,
or whether or not the court decision thatI think it was in the
Southern District Court of New York.
Mr. COMEY. Yes, maam.
Ms. WATERS. Decided that perhaps these NSLs were in violation
of the fourth amendment, and maybe the first amendment. Im concerned whether or not you continue to use NSLs, whether or not
youre appealing the court decision. And if you are, why do you
think its important to have them?
The ability to use NSLs gives you awesome power to demand,
command, all kind of personal information, without judicial review.
Its another form, I guess, of administrative subpoena, without having to get the same kind of review that you would get under the
normal administrative subpoena. So where does the Department
stand on these NSLs at this time?
Mr. COMEY. Thank you. I think the answer isor I can tell you
what I know perhaps for certain. The Government is appealing to
the Second Circuit Court of Appeals Judge Marreros decision in
the Southern District of New York. That Im certain of. Im quite
certain that the judges order was stayed, pending the appeal. And
so there is no order presently in effect forbidding their use.
So I expectalthough as I sit here, I havent been involved in
issuing anybut Im quite certain that they continue to be used,
because theyre very, very important. Its a limited class of information that can be obtained with an NSL. As I understand it, limited
to credit information, financial institution information, or telecommunications records, phone, Internet records. And thats very,
very important stuff for the FBIs counterintelligence and foreign
intelligence investigators.
Mr. NADLER. Would the gentlelady yield for a second?
Ms. WATERS. Yes, Ill yield.
Mr. NADLER. Youre aware that under legislation that we passed
last year, financial institutions, for NSL purposes, means almost
anything now? I yield back.
Ms. WATERS. Thank you. Oh, did you finish?
Mr. NADLER. Yes, I think so. The knowledge.
Ms. WATERS. It is my understanding that we changed the standards so severely that we could have innocent people who come in
contact with people who may be suspected of being an agent, who
then would be subject to NSLs.
The last time we had someone here from your department, I used
the food court example, where you innocently sit in a public place
and get involved in a conversation with someone that you dont
know, just out of courtesy, and then become an object and suspected of having some relationship to someone. And then, all of a
sudden you are subject to an NSL.
And I wanted you to continue the discussion, to tell us why you
think its so important, even if you end up violating the privacy of
innocent people.
Mr. COMEY. Yes, maam. Mr. Nadler had me in the food court.
Its sometimes hard for people to hear, coming from a prosecutor,

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or it sounds odd to them. We dont just investigate the guilty. We
end up investigating a lot of people who turn out to be innocent.
And thats true in the criminal arena; which is understandable, if
you sort of focus on what we do. Even if were investigating a
fraud, we know the fraudster ran a company. And we need to
know, well, did those around him at the meetings with him, were
they in on it.
And a lot of them may turn out, no, they didnt know about it.
Those are the truly innocent people. Or they may be people we just
decide we cantthere isnt enough evidence to charge them, and
so that goes away.
Its true, as well, in the intelligence and counterterrorism context. As I mentioned earlier, we get a lot of what I call poison
pensletters, e-mails, phone callstelling us that neighbors and
friends and, in many, many cases, former spouses and former significant others, are spies and terrorists. We have to check that out.
We have to investigate that. We would be drilled if we didnt and
one of them turned out to be a bad guy.
And so we have to investigate people all the time based on our
belief that information about them will be relevant to an investigation. The food court example is a good one, although Mr. Nadler
had excellent hypotheticals to tease it out. If we saw someone having dinner with, sitting in a food court, talking in an animated way
with Mohamed Atta, youre darn sureand everybody in this room
would want us towere going to figure out who that person is.
And we may use an NSL, we may use 215, we may use a grand
jury subpoena. We need to know more about them. And wed probably start with a credit check.
Ms. WATERS. Well, if Mohamed Atta was in the
Chairman SENSENBRENNER. The gentlewomans time has expired.
Ms. WATERS.in that food court, I would suspect that you should
have caught him before that.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr.
Forbes.
Mr. FORBES. Thank you, Mr. Chairman. And Mr. Chairman,
thank you for holding this hearing.
Mr. Comey, I want to thank you not just for your substantive
knowledge of the PATRIOT Act, but for the articulate way that
youve been able to explain to us some of the myths that we have
been hearing about it.
Piggybacking on what Congressman Feeney said, Ive seen few
measures that have had more misinformation than the PATRIOT
Act; some of that unintentional, much of it intentional. So I thank
you for clearing some of that up.
One of the areas is section 213. And I know that youve talked
a lot about that today, but specifically I was wondering, just two
aspects of that, if you would clarify for us today. On the delayed
notification of search warrants, its my understanding you still
need judicial review and approval. And I was wondering if you
could just tell us for the record what the Government needs to
show to get delayed notification.
And as part of that, I know that one of the justifications is that
it wouldgiving contemporaneous notice would seriously jeop-

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ardize the investigation. And there are some arguments that that
perhaps is too broad of a scope. And I wonder if you would just respond to that as you explain the Governments burden.
Mr. COMEY. Yes, sir. Thank you. Under the PATRIOT Act, which
codified existing practice over 40 years before that, the Government
has to go to a Federal judge, make a written showing of probable
cause based on a sworn affidavit. The judge has to conclude theres
probable cause to search, and issue the warrant. The judge will
only give the Government permission to delay noticenot suspend
notice, but delay noticeif the judge concludes that one of five
things is true. And those are the five categories in the PATRIOT
Act: one of them being seriously jeopardize an ongoing investigation; another one being that lives will be at risk; that there will
be witness intimidation, flight, destruction of evidence, as I recall
them, serious events in the course of an investigation.
And its a tool that, as before the PATRIOT Act, we dont use
much. As I said, I think we use it about 50 times a yearonce for
each State, once a year. We use it when it really, really matters;
when people are going to get killed, bad guys are going to flee, people are going to get hurt. If we have to tell them that we were the
ones who went into the drug house and took their drugsinstead
of having them think it was stolen by rival drug dealersif we tell
them we went in, theyre going to know who the informant was,
and theyre all going to flee.
Folks have said that seriously jeopardize is too broad, and inappropriate. I dont think so, and in fact I dont think Federal judges
have found that. Weve provided to Congress examples where that
provision was the one where judges found a basis to delay notice
of a search warrant. And its one that judges have used sparingly,
that weve used sparingly; but when it matters, its a tool we really
need.
Mr. FORBES. Thank you, Mr. Chairman. I yield back the balance
of my time.
Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King.
Mr. KING. I thank the Chairman. And I want to thank the gentleman for his testimony before this Committee. It has been enlightening. And its important to have this Committee informed. Its
also important to have much of the presentation in the record.
I would just make a statement and ask your reaction to this, and
thats with regard to the PATRIOT Act. The allegations that it either violates constitutional rights or allows for the violation of constitutional rights, rights to privacy or civil liberties, would you say
that that allegation has become an urban legend in this country?
Mr. COMEY. Yes, sir, I would. I say when I speak publicly its become part of the drinking water. So much so that we have two
groups in this country when you go out and meet real folks: those
who think its okay that theres been a tradeoff of liberty for security, and those who think thats not okay. And I always propose to
the group: Could you open your mind to the possibility that there
ought to be a third groupof which maybe Im the only member
Mr. KING. Im with you.
Mr. COMEY.that there hasnt been a tradeoff. But its so much
part of the drinking water that people think you must have smoked

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something before you came into the meeting. Thats absolutely
true.
Mr. KING. Well, its clear you have not. And I appreciate that,
particularly being able to articulate that in a fashion more clearly
than we have heard before, I believe, before this Committee.
In your mind, is there a particular definition of a terrorist that
youre looking for, that helps you narrow the focus from this mass
of information that you have, for one thing? You spoke to the information thathow do you sort through all that? How do you identify where to target your investigations?
Mr. COMEY. We work from known facts. I think sometimes people
imaginemaybe folks who watch 24that we somehow zoom
over with a satellite and look for bad guys everywhere. What we
do is capture an al-Qaeda guy; find out whats in his pockets; find
those phone numbers; find out whose phones those are; find out
where those people are, who they might know, to tryjust the way
we do criminal investigations. We start from a known fact, a
known bad guy, and we try and figure out whos connected to him.
And thats why, to respond to the concern earlier, we have to end
up looking at peoplemaybe he called a particular number 15
times. We have to check that out. We may find out its the
Dominos pizza place, but its incumbent upon us to check that out.
Thats how we work. We start with a known fact, with a known
bad guy, and try and figure out where the web is, where the connections are. Because our goal is prevention. We need to find those,
especially those who are here looking to harm us, but then those
around the world who are looking to come here to harm us.
Mr. KING. Are there distinctions between the approach to terrorists, and al-Qaeda in particular, from the investigation and prosecution of the Mob? Are there some things there that transpose
across into terrorist investigations that are very similar?
Mr. COMEY. Very, very similar. And its why some of the best
counterterrorism investigators started out as La Cosa Nostra,
Mafia investigators, because they are used to secretive organization, bound by an oathbayat in al-Qaeda, omerta in La Cosa
Nostra; and Ive done Cosa Nostra work. And its a web of connections where people are looking to conceal themselves in ordinary
businesses: Im just a butcher, or Im just ayou know, I just
sell clothes for a living, when youre really a Mob guy.
And those skills, the ability to put together networks and connect, and flip people, develop sources to move up the chainsame
tools we use in the criminalon the counterterrorism side.
Mr. KING. And there are common denominators there that would
be maybe family relationships, business relationships, ethnicity, religion, those kind of things, as well?
Mr. COMEY. Yes. All those things that connect good people also
connect bad people, and help us understand who are the potential
bad guys close to the known bad guy. Thats the work we do. And
we try to use all tools at our disposal to incapacitate. With Al
Capone, we used spitting on the sidewalk, tax charges. We do the
same with counterterrorism.
The one advantage we have is the response ofthe real heroes
in this story are not people like me, but are the people in the military and the intelligence community who have taken the fight to

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the enemy far from here. Thats made an enormous difference.
Thats a tool we didnt have in the Mob, appropriately; but thats
made an enormous difference.
Mr. KING. And one of the things that I would think would be
part of the initiative would be to keep the terrorists out of the
United States. And I would point out that, to our records, 1,129,000
were apprehended coming across the southern border in the last
year. The most consistent number I hear is that for every one
thats apprehended, two make it throughthat would be roughly
three million-plusto here. They may or may not have gone back.
In that huge haystack of illegal immigration thats pouring across
this border, how can we ask you to find the needles that are the
terrorists?
Mr. COMEY. Thats a very, very big challenge, and a thing thats
of great concern to us, great concern to the Department of Homeland Security. It is an obsession of ours, and it should be.
Mr. KING. I thank you very much for your testimony, and I yield
back the balance of my time.
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from Arizona, Mr. Franks.
Mr. FRANKS. Well, thank you, Mr. Chairman. And thank you,
General Comey. I am one of those who is constantly having to explain to constituents, you know, some of the urban legend that you
spoke of earlier. And so let me just ask you firstyou know, sometimes a policy is measured in the context of the experience that you
have with it. Having said that, do you have any examples or any
indication or research that shows where people that were truly innocent victims have been caught up in a misapplication or perhaps
as a result of some flaw in the PATRIOT Act?
Mr. COMEY. No, absolutely not. And I mean that. I mean none.
We have a very aggressive, very talented Inspector General at the
Department of Justice. And its his job, under section 1001 of the
PATRIOT Act, to receive complaints and investigate them, of
abuses of the PATRIOT Act. And our record is perfect in that regard.
The Mayfield case from Oregon was mentioned earlier, where the
fellow was arrested as a material witness and held for 2 weeks
based on a mistaken identification of his fingerprint from a bag in
a van near the Madrid bombings. But thats not the PATRIOT Act.
I mean, he was detained under the material witness provision,
which has been a part of the criminal code for many, many years.
But under the PATRIOT Act, Im very confident in saying there
have been no abuses found; none documented. Plenty alleged, but
most of it turns out to be stuff that, again, has nothing to do with
the PATRIOT Act.
We had a lady call in and say there was a line across the top
of her television screen, and she thought that had something to do
with the PATRIOT Act. And you know, we get a lot of stuff like
that. And it all goes to the Inspector General, and he has to decide
what to do with it.
Mr. FRANKS. Well, General, you know, sometimes the example
thats given, that with the people in power now, theres a great deal
more comfort level with a given policy; but should those people

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changeyou know, you articulated it very well yourselfyou never
know who will gain the reins of power at some point.
I think that today, as we consider terrorists, were not concerned
at all, in a sense, that England may have the nuclear capability to
essentially devastate us, because theyre friends, theyre people
that we trust. But of course, if an al-Qaeda or someone like that
gained even one nuclear capability, then we would be very, very
concerned. So who is in power is of preeminent consideration.
Having said that, if the wrong people got in powerand I realize
the wrong people can ultimately subordinate and twist any policy
but if the wrong people did somehow get into power, that had no
real concern or respect for the kind of civil liberties that we have
grown to enjoy, what do you see, personallyand this is a bad
question to ask, but what do you see, personally, as the greatest
weakness contained within the PATRIOT Act, or the greatest opportunity for it to be misused at some point?
Mr. COMEY. Thats a great question, Congressman. To start with
the premise, I agree with you completely. I said this to Senator
Craig in the Senate. I dont think it came out the way I meant it.
I said to him, You shouldnt trust me. I mean, I didnt mean that.
I mean, you should, and I trust me, and I like the people who lead
the Justice Department and the Executive Branch now.
But I meant that, when I say we are a country of laws, not men,
we cant devise the systems based on whos in the office; because
you could have other people there. But second, good people make
mistakes when under great pressure. I mean, if, God forbid, theres
another attack in this country, there will be tremendous pressure
from the American people to respond to it. And we need these laws
and this oversight in place.
I think the greatest risk is thatto pick on something Congressman Lungren saidthat oversight wont mean anything; that
gradually the culture will drift to a point where people doing this
work understand that nobody in Congress reads the reports, and
so just, you know, send them up there; that theres no real check.
We need a check on our power. I do. And I need to know that
someone is going to look at what I do. It helps me. It helps me
when Im tired not to make a mistake. It helps me when Im overeager sometimes not to make a mistake.
So if theres a risk, I think the PATRIOT Act is chock-full of
what we need: judges, inspector general, and oversight. But if the
culture of that drifts and 5 years from now its sort of a myth, or
10 years from now nobody even looks, you could have problems. Because it happens. We have a history of it happening.
Mr. FRANKS. Well, thats kind of a segue into my last brief question here. Given the fact that you consider oversight so important,
I know that, as I understand, the Department itself hasI wont
use the word vacillated, but something along those lineson this
review, this sunset that would occur at some point. And it occurs
to me that thats a good idea; even though my own perspective has
developed in this situation. You know, Ive come to
Chairman SENSENBRENNER. The gentlemans time has expired.
The gentleman from Massachusetts, Mr. Delahunt.

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Mr. DELAHUNT. I thank the Chair. And I apologize for not being
here sooner, but theres a markup going on. And I welcome Mr.
Comey.
Im just going to make an observation that I think segues into
what I anticipate as the observation that was going to be made by
the gentleman from Arizona, and your comments earlier. I happened to catch your reference to congressional oversight as being
a check, if you will, on behavior of the executive branch. And I
agree with that. And I know youre sincere in that comment.
And I also want to acknowledge that there has been very good
input from the Department of Justice during the hearings by the
Crime Subcommittee on the reauthorization. And I should commend the Chair for directing Chairman Coble in conducting those
hearings. I think its been very fruitful.
And I think that theres the potential for some consensus on
some of the substantive issues. But Ive said this publicly at these
hearings, and let me just repeat it once more. I think theres a natural disinclination on the part of the executiveand Im not referring specifically to the Department of Justice, but to all executive
agenciesto cooperate on an ad hoc basis, when it suits their particular agenda, with Congress.
I look back 4 years now, when we were in the process of passing
the PATRIOT Act. And as you well know, it came out of this Committee with a 36-to-nothing, unanimous vote; which was extraordinary. It subsequently was changed, to the chagrin of some of us.
But I keep hearing the comment from witnesses and from others
saying that, We have to make this permanent.
After, I think, eight or nine hearings by the Crime Subcommittee, I am now convinced that that would be a mistake, to
make it permanent. In fact, I would go so far as to insist, or at
least make an effort to have a sunset attached to the PATRIOT
Act, and maybe to other pieces of legislation that come before this
Committee for its considerations. Because it does really secure the
cooperation of the Executivein this case, the Department of Justiceto be much more forthcoming and to be much more cooperative. Your response?
Mr. COMEY. Its not an unreasonable thing to say. The reason I
would urge that we not do that is a number of things. I think, as
I said earlier, that especially with some of these tools, if you sunset
them again we will never be able to get people to completely buy
that the world has changed, particularly on information sharing.
Were trying to change a culture, which is like turning a battleship.
And if people think, Well, Congress might just take away the tug
boats, then why are we all going to work to turn that battleship?
Thats one worry.
The second is, I think the tools are in there. And maybe, you
know, I overestimate the ability of oversight to get it done; but I
dont think so. I mean, I think that, with the power of the purse
and the power of legislation, this Committee and the others have
the ability to haul us up here and demand to know what were
doing. And if were not giving you the information, to have some
consequences for that. I think thats a far better way to proceed.
Mr. DELAHUNT. Let me reclaim my time. Because I really want
to let you know that I disagree with you. Okay? And its been the

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experience, I believe, of this Committee in a variety of different
areas, not just the PATRIOT Act itself, but where the lack of cooperation has been frustrating, aggravating, and on different occasions has required rather strong action, not just by the Chair of
this particular Committee but by other Committees, to secure cooperation. And if we dont have some leverage, were not going to
get it. Thats been the conclusion that Ive reached as a result of
my experience here.
Chairman SENSENBRENNER. The time of the gentleman has expired.
Mr. DELAHUNT. Would the Chair indulge me for an additional 30
seconds?
Chairman SENSENBRENNER. I will. Proceed.
Mr. DELAHUNT. In addition to the incentiveand I understand
the culture change that youre talking aboutyou know, if the tug
boats arent thereI think that was your metaphorI just want to
encourage and incentivize the Department of Justice to keep the
tug boats running well. Thats what I see as the incentive. Were
watching, and we do have leverage.
And as long as those tug boats are steaming, and steaming well,
and not going off course, are charting a course that we can all embrace and be proud of as Americans with our cherished core values
of civil liberties and privacy, then fine. But were going to
incentivize.
Chairman SENSENBRENNER. The time of the gentleman has once
again expired.
Mr. Comey, thank you very much for coming here and for your
testimony. I would like to echo the words of Mr. Delahunt. I believe
that in the last year and a half the Justice Department has been
much more forthcoming on the PATRIOT Act and on other issues
than in the two and a half years prior to that.
And this Chair has both publicly and privately expressed to
former Attorney General John Ashcroft that an Ive got a secret
attitude on legitimate oversight that does not involve classified information is self-defeating.
I would like to salute both you and Attorney General Gonzales.
I think that there has been a change in attitude that has been particularly marked in the hearings that weve had on this. You help
your cause by coming up here and answering questions in the way
that you did, and the way that your boss did a couple of months
ago. And I hope that continues.
Thank you very much for coming. The hearing is adjourned.
Mr. COMEY. Thank you, Mr. Chairman.
[Whereupon, at 11:55 a.m., the Committee was adjourned.]

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APPENDIX

MATERIAL SUBMITTED

FOR THE

HEARING RECORD

INDICTMENT OF TARIK IBN OSMAN SHAH SUBMITTED BY F. JAMES

SENSENBRENNER, JR., CHAIRMAN, COMMITTEE ON THE JUDICIARY

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